Palamaris and Falberg

[2020] FCCA 1429

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALAMARIS & FALBERG [2020] FCCA 1429

Catchwords:
FAMILY LAW – Parenting – best interests of child – interim application concerning a child moving interstate to live with mother – where the child lives with father and spends time with mother – where father alleges children have been subjected to harsh physical discipline and/or assaults by mother – whether unacceptable risk of harm from the child living with the mother – where satisfied the child is of some maturity, intelligence and sensitivity – where satisfied the child genuinely wishes to move interstate to live with mother – no unacceptable risk of harm should the child live with the mother – the expression of the child’s wishes should be given effect.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MR PALAMARIS

Respondent: MS FALBERG

File Number: DNC 115 of 2014

Judgment of: Judge Young

Hearing date: 13 May 2020

Date of Last Submission: 13 May 2020

Delivered at: Darwin

Delivered on: 13 May 2020

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

1. That the father is to permit the child X born in 2005 to return to NSW in accordance with her wishes at the earliest opportunity.

2. That the parties share to the cost of the airfare with the mother to book and pay for the flight in the first instance and the father to reimburse the mother half of cost of airfare within 30 days.

3. That the matter be adjourned to 31 August 2020 at 11.00am for further directions.

IT IS NOTED that publication of this judgment under the pseudonym Palamaris & Falberg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 115 of 2014

MR PALAMARIS

Applicant

And

MS FALBERG

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim application about a child, X, who is almost 14.  Last year these proceedings resumed after there had been earlier proceedings between these parties in this Court in 2014 and 2015.  In April of 2019 the father commenced proceedings again because he said the three children of the relationship namely Y, who is now 17, X, who is almost 14 and Z, who is 12 years old, expressed a wish not to return to live with their mother in New South Wales and they placed themselves with their father at the end of the holidays.

3. One of the first relevant orders was for the preparation of a child-inclusive conference memorandum to ascertain the wishes of the children.  The father had made allegations that the children have been subjected to harsh physical discipline and/or assaults in the course of family arguments.

4. The family consultant spoke to each of the children.  I do not propose to go through what each of the children said but the allegations made by the children, in particular X, allege that Y, her older sister, had been “hit and treated badly by mum” on a number of occasions and when she intervened to help her sister “mum pushed her around”. 

5. X said that she wanted to live with her father but she still wanted to see her mother on holidays.  Effectively X was saying that she wanted to go for holidays with her mum. Z, the boy, said something similar.  He essentially supported those allegations.  Y did not make any allegations of actual physical assault or mistreatment but she recorded a history of conflict with her mum.

6. The overall impression I have from what the children told the family consultant in May 2019 is that there was a level of conflict within the family which on occasion became physical with some pushing and shoving.  I certainly have made no finding and there is no material as far as I am aware that would justify a finding that the mother has abused or neglected these children.  In my view the material falls well short of that.  On the contrary, the evidence seems to suggest that the children retain a warm relationship with their mother, notwithstanding the fact that they are living in Darwin with their father.

7. When the mother saw the wishes of the children set out in the memorandum, or soon after, she changed her course.  She had opposed orders for the children to remain living in Darwin with their father up until that point but after the memorandum she changed her approach.  She recognised or accepted that the children should be permitted to live in Darwin with their father.

8. In my view the mother acted responsibly in this way.  She acted as a sensitive parent would and I have at no time had the impression that the mother in this case has acted other than in a way that recognises the best interests of her own children.

9. The consent orders were made about the children living with their father and those consent orders provided for the children to spend holiday time with their mother.  The children have been spending regular holiday time with their mother pursuant to those orders without any complaint being made about violence, conflict, or anything else.  There is no evidence before me that the time the children have spent with their mother since the making of those orders last year has gone otherwise than well.

10. Earlier this year the mother brought to the attention of the Court that X had changed her mind, and X wished to return to live with her mother in Town A, New South Wales and on 3 April 2020 I made an order that there be an interim hearing about that.  To no avail I encouraged the parties as best I could to reach an agreement, emphasising that X is almost 14 and ordinarily the wishes of a child of that age would be given very significant weight in the question of where she was to live. 

11. Mr Palamaris alleges that X is at risk of harm should she return to her mother living in New South Wales but as I have said there is nothing in his affidavit material to suggest that the time the children have spent with their mother since the orders last year has gone otherwise than well.

12. I do not accept that there is an unacceptable risk of harm to these children from spending time with their mother.  I do not accept that there is an unacceptable risk of harm should X live with her mother.

13. The mother’s affidavit attaches a number of communications between herself and X and between herself and the father.  It does not appear to be in dispute that X genuinely wishes to return to New South Wales.  Her reason essentially is that she is not enjoying going to B High School and there may be other reasons as well, I do not know.  I read quite a long email from X which sets out her views.  X appears to me from that email to be a child of some maturity, intelligence and sensitivity.

14. The father alleges that X has been manipulated in some unspecified way by the mother but I saw no evidence of that whatsoever. 

15. I consider that X genuinely wishes to return to live with her mother.  Her reasons given her age may be good, bad or indifferent, I do not know.  The ones that she has given relate to her unhappiness at B High School and a wish to return to her former school.  The father says it’s really that she wants to go and see her boyfriend who she has “a crush on”.  There was no evidence of that and even if true I think that is probably only one of the many elements in X’s mind that go into her making the decision she has made.

16. All in all I am satisfied:

    a)there is no unacceptable risk of harm should X live with her mother;

    b)that X is a child of some maturity, intelligence and sensitivity, and her wish to return to New South Wales and live with her mother is a genuine one and not the subject of manipulation;

    c)having regard to each of the factors in subsection 60CC(2) of the Family Law Act:

    i)the right of a child to a meaningful relationship with both parents;  and

    ii)the need to protect a child from harm or abuse;

    in relation to the second I am not satisfied that is a factor that is engaged in this case;  and

    d)having regard to all of the matters in subsection (3) but particularly the expression of the child’s wishes, which I have seen and accept as genuine, should be given effect.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 3 June 2020